What warrants custody modification in New York

In many cases in which a couple with a child divorces, absent an agreement, the court will issue an order granting one parent primary physical custody and award the other parent parental access. Custody orders are not permanent, however, but can be modified upon a showing that a modification is necessary due to a change in circumstances. Recently, a New York appellate court once again discussed what constitutes a sufficient change in circumstances to warrant a modification in a case in which a mother appealed the dismissal of a petition to modify custody. If you wish to seek a modification of an existing custody order, it is in your best interest to meet with an experienced New York child custody attorney to help you seek an arrangement that is in the best interest of your child.

Facts and Procedure

It is reported that the mother and the father divorced in 2013. Initially, the mother was awarded physical custody of the couple’s sole child. Custody was then modified via a consent order in December 2015, which granted father physical custody and awarded the mother parental access. Subsequently, in April 2018, the mother filed a petition to modify the 2015 order to grant her physical custody of the child. Following a hearing, the father moved to dismiss the petition, arguing that the mother failed to establish a change of circumstances sufficient to warrant a modification. The court granted the father’s motion, dismissing the mother’s petition. The mother appealed.

Evidence of a Change in Circumstances

Under New York law, an order establishing custody or parental access will only be modified if the party seeking the modification establishes that there has been a change of circumstances that requires a modification to meet the best interests of the child. A court will review the entirety of the facts and circumstances presented in determining what is in a child’s best interests. Further, in determining whether to dismiss a petition for failure to establish a prima facie case, the court is required to accept the evidence presented by the petitioner as true and grant the petition every favorable inference that can be drawn from the evidence.

In the subject case, the appellate court found that accepting the evidence produced by the mother as true, the mother produced adequate evidence to establish a prima facie case demonstrating a change of circumstances was necessary to protect the best interests of the child. Specifically, the mother testified that she had obtained stable housing, was gainfully employed and purchased a vehicle. The court found that the mother’s testimony, along with an in-camera interview of the child, was sufficient to require a full investigation to determine the most appropriate custody arrangement. As such, the appellate court reversed the trial court ruling.

Consult with a Child Custody Attorney in New York

Determining a custody arrangement that is beneficial to both you and your child can be complicated. If you wish to obtain custody or modify an existing arrangement, it is in your best interest to meet with a skillful New York attorney adept at handling child custody matters to assist you. Ksenia Rudyuk is an experienced and passionate New York family law attorney who will work tirelessly to help you seek your desired result. You can contact Ms. Rudyuk via the form online or at  212-706-2001 to set up a confidential consultation.